| Matter of DiSanza v Town Bd. of Town of Cortlandt |
| 2011 NY Slip Op 08941 [90 AD3d 659] |
| December 6, 2011 |
| Appellate Division, Second Department |
| In the Matter of Richard DiSanza, Appellant, v TownBoard of Town of Cortlandt et al., Respondents. |
—[*1] Thomas F. Wood, Town Attorney, Montrose, N.Y., for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board ofthe Town of Cortlandt dated January 12, 2010, which abolished the position of environmentalanalyst, and to reinstate the petitioner to that position with back pay, the petitioner appeals from ajudgment of the Supreme Court, Westchester County (Cacace, J.), entered August 12, 2010,which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
A public employer may abolish civil service positions for the purpose of economy orefficiency (see Matter of Hritz-Seifts vTown of Poughkeepsie, 22 AD3d 493 [2005]; Matter of Rose v City ofNewburgh, 239 AD2d 587 [1997]). One who challenges the validity of such an act has theburden of proving that the employer did not act in good faith in abolishing the position (seeMatter of Hritz-Seifts v Town of Poughkeepsie, 22 AD3d at 493; Matter of Rose v Cityof Newburgh, 239 AD2d at 588; Matter of Rosenthal v Gilroy, 208 AD2d 748, 749[1994]; see also Matter of Aldazabal v Carey, 44 NY2d 787, 788 [1978]). Here, theSupreme Court properly determined that the petitioner failed to sustain his burden of proving thatthe Town Board of the Town of Cortlandt did not act in good faith (see Matter of Hritz-Seiftsv Town of Poughkeepsie, 22 AD3d at 493; Matter of Rose v City of Newburgh, 239AD2d at 588; see also Matter of Linneyv City of Plattsburgh, 49 AD3d 1020, 1021-1022 [2008]).
Moreover, the petitioner's contention that the Town Board of the Town of Cortlandt violatedCivil Service Law § 75-b is without merit, as the record contains no evidence that thepetitioner's position was eliminated in retaliation for whistle-blowing activities (see CivilService Law § 75-b [2] [a]; Suarez v New York City Dept. of Probation, 268AD2d 203 [2000]).
Contrary to the petitioner's contention, he failed to raise a triable issue of fact that wouldhave necessitated a hearing (see CPLR 7804 [h]; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO vRockland County Bd. of Coop. Educ. Servs., 39 AD3d 641, 643 [2007]; cf. Matterof Weber v County of Nassau, 215 AD2d 567, 569 [1995]).
The petitioner's remaining contention is not properly before this Court, as it is raised for thefirst time on appeal (see Dance Magic,Inc. v Pike Realty, Inc., 85 AD3d 1083, 1089 [2011]). Rivera, J.P., Leventhal, Belen andRoman, JJ., concur.